In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Tuesday, 30 June 2015

US satellite broadcaster Sirius XM has reached a settlement with all three major record labels over the long-rumbling pre-1972 copyright dispute in the US, which has been highlighted in the actions brought by Flo & Eddie of the band the Turtles in New York, California and Florida. The recording Industry Associatoin of America (RIAA) claim settlement also includes ABKCO – the owner of classic Rolling Stones copyrights – and the claimants (Capitol Records LLC, Sony Music Entertainment, UMG Recordings Inc, Warner Music Group and ABKCO) have jointly been awarded $210m as part of a settlement with Sirius. In a statement, Sirius said: “The settlement resolves all past claims as to our use of pre-1972 recordings owned or controlled by the plaintiffs and enables us, without any additional payment, to reproduce, perform and broadcast such recordings in the United States through December 31, 2017. As part of the settlement, we have the right, to be exercised before December 31, 2017, to enter into a license with each plaintiff to reproduce, perform and broadcast its pre-1972 recordings from January 1, 2018 through December 31, 2022.” That license should ensure that the majors, at least, are compensated for the performances of pre-1972 copyrights on Sirius in the States within the five year period. Sirius said: “The royalty rate for each such license will be determined by negotiation or, if the parties are unable to agree, binding arbitration.”Michael Huppe, chief executive officer and president of the sound recording rights collection society SoundExchange said: “While it unfortunately required a lawsuit to make SiriusXM do the right thing, we are pleased that these legacy artists are finally getting the respect – and compensation – they deserve for the use of their music.Welcoming the settlement, the head of the labels trade body in the USA, the RIAA, Cary Sherman, told reporters: "This is a great step forward for all music creators. Music has tremendous value, whether it was made in 1970 or 2015. We hope others take note of this important agreement and follow Sirius XM's example" - the 'others' no doubt a pointed reference to rival service Pandora. Flo & Eddie's litigation is ongoing, and it now has class action status meaning artists and labels not covered by the RIAA's deal will benefit if the duo ultimately prevail.

Phonographic Performance Limited v Fletcher is an extempore ruling by Mr Justice Arnold, sitting in the Chancery Division, England and Wales, last Monday; being extempore it isn't available on BAILII but it was noted in brief on the subscription-only Lawtel service. It's one of those rulings that reflects on the sad end which some defendants face when they just keep carrying on infringing, ignoring every cue to stop.

In these proceedings Phonographic Performance Limited (PPL), a UK music licensing company, applied to commit Fletcher for contempt of court, following his breach of an order prohibiting him from playing sound recordings without a licence at a nightclub. Fletcher himself was the premises licence holder of a night club. Despite PPL's warning, Fletcher did not take out a licence to play music the rights to which were administered by it. PPL then applied for judgment in default for copyright infringement, securing an injunction that ordered Fletcher not to play PPL's songs in public without a licence. At this point Fletcher agreed to pay the outstanding licence fees by monthly instalments -- but then he defaulted on payment. Subsequently allowed to make weekly instalments, he paid them late. PPL even reduced the weekly amount that Fletcher had to pay, but he still only made sporadic payments. An investigating agent for PPL then discovered that Fletcher was still playing its recordings at the nightclub, in breach of the injunction. Fletcher conceded that he was indeed in breach of the order. But what was to happen to him?

Fletcher said that he had had cancer and was suffering from anxiety and depression, and that his mother had recently died. Further, that the basis of the contempt application was solely that he had played the music in public on one single date, and that it was not a repeated and prolonged contempt. PPL was not particularly sympathetic, submitting that there had been a long history of failures by Fletcher, and that it was also entitled to damages in respect of his copyright infringement.

Arnold J granted PPL's application to commit Fletcher for contempt. In his view:

* even taking Fletcher's pleas in mitigation into account, PPL's evidence established not merely a single breach but a sorry history of failure by Fletcher -- first to obtain a licence and then to adhere to payment for the licence fee. That had to be taken into account.

* the contempt committed could only have been deliberate. Although this was a first offence and a single allegation, the threshold for imposition of a custodial sentence had been crossed, though an immediate one was not appropriate.

* Fletcher would be sentenced to 28 days' imprisonment, suspended for 12 months, on condition that he stopped infringing PPL's copyright.

* where infringement was established to the standard required to support an application to commit for breach of an injunction, there was no arguable defence to the copyright infringement claim and the court could order damages.

* under the Copyright, Designs and Patents Act 1988 s.97 the court could summarily assess damages and, on this basis, PPL would be awarded the outstanding sums due to it for licence fees up to the date of the contempt of court application. PPL was also awarded a further £6,000 in damages and interest, and Fletcher would have to pay the costs of PPL's application on an indemnity basis.

It's not just sad that people help themselves to other people's copyright for income-generating activities such as running night-clubs; it's close to tragic that they inflict further cost and liability upon themselves, at their own expense and to no discernible end, when all that was needed was the payment of a licence fee in the first place. It would be good to understand what causes such self-destructive impulses in the hope that a better way might be found of dealing with them.

Monday, 29 June 2015

A couple of weeks ago this blogger received a media release that somehow slipped to the bottom to his pile of unattended emails and remained there till he found it again today. The title "CLA launches new time-saving permissions service for universities: New Second Extract Permissions Service available now" pretty well gives the game away. Anyway, the release reads, in relevant part, as follows:

CLA (The Copyright Licensing Agency [in the UK]) is launching a new service to allow universities to buy rights instantly online. This is the first time that universities have been able to purchase additional rights from CLA immediately and it is expected to save them thousands of hours each year on administration.
The new ‘Second Extract Permissions Service’ enables universities to buy rights instantly when they need to copy more than is allowed under the CLA Higher Education Licence.
A university with the licence can currently copy a limited extract from a published work - for example a single chapter or 5% of the whole text. Until now, if a university wanted to use more content they would contact the publisher or another agent to purchase permission, which can be a time-consuming process. The new Second Extract Permissions Service will speed up the process and reduce administration costs.
Over 100 major publishers are signed up to the service - representing the majority of the millions of pages copied each year in higher education.

Some universities are using a beta version but all are invited to pre-register now online ahead of an August rollout at http://he.cla.co.uk/second-extract.This blogger has taken a brief look at the service and would be interested to hear from those who are either expecting to use it or to derive income from it. His favourite bit is the line that reads "the service is optional and there is no charge if you don’t use it".

The 1709 Blog has learned that the Modern Poland Foundation has launched an Open Call for Speakers for the Fourth International CopyCamp Conference taking place on 4 November 2015 in Warsaw. If you are not familiar with CopyCamp (which has featured in earlier 1709 Blog posts here), let the organisers explain:

Good news for campers: the rain doesn't lastas long as the period of copyright protection for authors' works ...

The International CopyCamp Conference is the first Central-and-Eastern European annual event to undertake a multi-sided, balanced and unrestrained discussion on the social impacts of copyright. Every year representatives of cultural institutions and private sector, administration and the media, artists, activists, politicians and academics meet in Warsaw to discuss the influence of copyright law on the circulation of cultural goods, new business models for authors' remuneration, use of technologies in social activism, importance of copyright in the context of human rights, modern education, innovation. The fourth edition of the conference will present an opportunity to continue the dynamic debate characterized by high standards of communication and openness to the input from all interested parties in a neutral and friendly conference space encouraging participants from all over the world to network and share ideas.

We are happy to announce that our special guest this year will be Lev Manovich, theoretician and critic of new media, visual artist, professor at City University of New York and founder of the Software Studies Initiative, author of The Language of New Media.

Presentation proposals must be submitted in the form of an abstract of no more than 1,800 characters under one of the enlisted thematic tracks that characterize this year’s conference:

CopyArt

Models of Remuneration

Copyright and Education

Technology and Innovation

Copyright and Human Rights

Technologies in social activism

Copyright Enforcement

Future of Copyright

Copyright Debate

If you want to speak, click here. Your presentation should not exceed 10 minutes. The Open Call deadline expires on 20 July 2015.

For more information, click here or contact the CopyCamp Coordinator Marta Skotnicka by email here.

Saturday, 27 June 2015

There has been a lot of talk lately about the use of
photographs to create derivate works. Andy recently wrote
on this blog about the new Richard Prince exhibition, New Portraits, which presents ink-jet prints of photographs posted
on Instagram by third parties,
complete with Richard Prince’s own comments under the original posts. Asim wrote
about a recent French case, where the Cour
de cassation found that the right of expression of an artist who had used
fashion photographs to create several paintings trumped the copyright of the
fashion photographer, citing article 10 of the European Convention on Human
Rights (ECHR).

I read this week an i-Darticle
about the use of a photograph created by Tayler Smith and Arabelle Sicardi,
representing trans model Hari Nef. This photograph, Hari Nef, was presented last year in New York City as part of the Most
Important Ugly exhibition, which featured 13 portraits of individuals
wearing stunning makeup. As Tayler Smith explained
on her blog, she asked each subject a series of questions “about shame, safety, power, family and
beauty” and so the exhibition was a carefully executed project, not a mere
point-and-click show.

These two artists recently learned about the use of their photographic
work after friends saw an article in TheNew
Yorker about an exhibition by Yale’s M.F.A. students, which featured some
of their works presented, at the
Danziger Gallery in New York City until today. One of works
presented by the M.F.A. students is Cheeks,
which is credited online as a “Photograph by Zak Arctander.” Arctander used a
black and white print of the color photograph Hari Nef, tore parts of it and painted red and blue strands of
colors across the photograph, then printed the result on vinyl. So is it not a
“photograph” but a derivative work of art. The title of the work refers to the
gesture made by Hari Nef in the Smith and Sicardi original work, pulling her
cheeks out while smiling at the camera. The original authors of the photograph
were not credited in The New Yorker
article or on the Danziger Gallery website.

Photograph by Zak Arctander. Source: The New Yorker

Is this Fair Use?

It seems that Arctander did not ask permission to use Hari Nef to create Cheeks. Therefore, the use could be copyright infringement, unless it
is considered to be fair use. The use is probably transformative enough to be
fair use, as it does not merely supersede the original work, but adds something
new to it, as explained by the Supreme Court in Campbell v. Acuff-Rose Music., Inc.However, the fair use defense is a
question of both facts and law, and courts consider four factors to determine
whether a particular unauthorized use is fair. But this debate must take place in
a court of law, and no cease-and-desist letter has been sent, and no copyright
infringement suit has been filed. Hiring an attorney is a serious financial
obstacle for many artists, and litigation is long and costly. They may also choose
not to pursue it. Therefore, the discussion of whether a particular use of an
original art piece to create a derivative work is indeed fair is often left to
commentators. One can regret this, and hope that the Congress will eventually create
small claims copyright courts, which could serve as a venue for all the
artists to discuss the fairness of a particular use.

Droit Moral

Tayler Smith wrote a passionate blog post about the whole
story, where she lamented the use of female art by male artists. Arabelle
Sicardi tweeted
on June 18: “my art of @harinef i made w
@NotTaylerSmith was stolen by a male artist and then featured in @NewYorker
DOES THIS MEAN IM A REAL ARTIST NOW.I believe she and Smith indeed are, but that is not the point here.
However, without having to discuss whether this is indeed a case where a male
artist used women’s art to his own advantage, it appears that both Smith and
Sicardi see this instance as such. Therefore, it could be argued that their droit moral has been violated.

The subject of the photograph is Hari Nef, a trans model. Could
she file a right of publicity suit?

The Yale MFA show is on view now in New York City, in a
state which has a statutory right to publicity, N.Y. Civil Rights Laws §§ 50
and 51. However, courts in the Second Circuit also consider the First Amendment
rights of the author of the derivative work. In Hoepker v. Kruger, the SDNY found in
2002 that the right to publicity of a woman, the subject of a photograph taken
by Thomas Hoepker in 1960 to create his Charlotte
as Seen By Thomas image, had not been infringed by Barbara Kruger who used the
photograph thirty years later to create a silkscreen collage. This reasoning
could also probably apply to Richard Prince’s New Portraits, would a subject of the Instagram photographs file a right to publicity suit.

Privacy in One’s
Image Does not Always Trump Freedom of Speech in France

The right in the privacy of one’s image must also defer to
freedom of speech in France. The case Asim wrote about did not deal with right
of publicity issues, but, for the sake of this discussion, let’s imagine that
the fashion model in the photograph had filed suit, claiming that using her
likeness to create a work of art infringed on her right in the privacy of her
image (droit à l’image) This claim
would probably not have been successful, as the Cour de cassation recently held,
in another case, that the right to freedom of expression and of information,
protected by article 10 of the ECHR, trumps the droit à l’image of a writer. In this case, a man, known in France for
his extreme-right views, had been interviewed by a television crew making a
documentary about the anti-Semitic Protocol
of the Elders Sion book and how some Holocaust negationists are still
presenting it as an authentic document. The crew had signed an agreement with
the man interviewed, giving him a right to view the documentary before its
broadcast. However, the documentary was shown on television without him being
able to see it first. He claimed an infringement of his droit à l’image, but the Cour
de cassation ultimately found that as he had participated in the public
debate about the book, his image could be legally used in the documentary, even
though he had not been able to watch it beforehand.

So there is not much to be done from a legal point of view.
However, the authors of the original photograph have been hurt, and Anabelle
Sicardi wrote about the rage she and Tayler Smith felt when discovering the
unaccredited use. VARA gives them the right to have their work credited. A
court may find the use of their work to be fair use, or not, but the debate may
not take place in court of law, maybe because of financial considerations.
There is a need to find a balance between the rights of all of the artists,
including, of course, the right to create derivative work. How could this be
best achieved?

Friday, 26 June 2015

To
emphasise how boring life would be without images from our built
environment, this blog posting contains no pictures of buildings.

Until recently few
people would have understood the expression Freedom of Panorama.
Something to do with the iconic BBC TV current affairs programme
maybe? But this has all changed due to the ongoing debate (for
instance here,
here and here) within the EU about copyright reform. At the moment the opponents of Freedom of Panorama are in the ascendant. Freedom of Panorama is of
course about whether a photographer, videographer or artist may
freely record and then exploit images of sculptures or buildings
which are visible in public places, without seeking permission. In one
sense this issue highlights the wider problem of harmonising copyright law
across the EU. One look at the map below shows graphically where the
'fault' lines lie.

Countries shown in red
forbid any such representations without permission, whereas those shown
in dark green fully embrace the Freedom of Panorama policy. The lighter green countries
only extend the exemption to buildings, not sculptures or similar
works. Those in yellow permit only the recording of such works in
public places for non-commercial use. It is perhaps too simplistic to
say that these divisions are roughly aligned to the division between
a more utilitarian view of copyright as a property right, and the droit d'auteur where the spirit of the author is exalted, but that
certainly goes some way to explaining the fundamentally opposing
positions taken over Freedom of Panorama.

The debate also highlights the
two different senses of 'public domain'. In the wider context many people think of the
public domain as that to which the public has access, such as the
internet, as well as physical public spaces. On the other hand copyright
enthusiasts use the words in a much more specific sense, namely the definition of the state of a work which is no longer subject to legal
copyright protection. A building thus represents the paradox of standing in the public domain but not being in the public domain.

This raises the question: why should a building be subject to
copyright in the first place? Without doubt architects are usually
skilled artists and designers, and it is clearly fair and reasonable that their drawings
should be protected in the same way as other artistic works. But why
shouldn't the element of expression of their ideas (and thus copyright) be limited
just to the drawings alone? It is undoubtedly true that many
buildings are beautiful objects in their own right, but so are some
cars or clothes or culinary dishes, but we don't feel the need to
protect these things through copyright.

Unlike other forms of the traditional copyright works (literary, dramatic, musical and artistic), and despite a passing mention in Article 5(3)(h) covering exceptions to the reproduction right, a building cannot be subject to the majority of the specific provisions of the InfoSoc Directive (2001/29/EC) such as the communication right, the making available right or the distribution right. So that immediately makes a building a special case, outside the general direction of travel of copyright reform which is largely concerned with ensuring that copyright law reflects current and emerging technological changes. Furthermore because a building per se cannot be published, distributed or translated, it is effectively a continuous public performance or broadcast of the architect's creativity, open to everyone at all times. There is no need for a decision about whether a new public is being communicated to, as per Svensson. And even if the argument for
according copyright to a building is persuasive, should this really
extend to preventing the making of visual copies of it? After all,
such images in no way affect the economic or moral rights of the
architect any more than the building itself does. A photograph of a building does not compete with either the building itself or with the architect's drawings, because it does not do serve the same purpose. Such images will, in the main, only serve to enhance the reputation
and renown of the architect. Perhaps if copyright in a building was similar to design
right, in that what was restricted was the creation of an actual real
three dimensional full-scale copy of the building, that would make sense,
since the architect might be expected to earn an additional fee for any second edifice. One also has to consider how buildings come
about. Architects are usually commissioned to do the job; unlike
artists or sculptors, their creativity is only allowed to see the
light of day because of the patronage of developers. To use the
American terminology, their work is for hire. The end product of their job is not a work of artistic craftsmanship, as it is not made by their own skilled hands, and the underlying purpose of a building is utilitarian. But perhaps most
significantly, the design of a modern iconic building, such as the Shard in London or the
Burj Al Arab in Dubai, is not the work of one person, but huge teams
of engineers, architects and other specialists. While the outline concept may
originate from the mind of a single individual, the execution is way
beyond the capability of any one person. This strengthens my view that
allowing copyright in a finished building is absurd because it stretches the idea of 'author' beyond rationality.

And there is the entirely separate, practical argument that as far as non-commercial photography etc is concerned, copyright in the physical building is virtually unenforceable due to today's ubiquity of cameras and smart phones. While the average person might think twice about downloading a pirated piece of music, it is unrealistic to believe they will ever see the moral case for not taking a selfie with the London Olympic Stadium or the Louvre in the background, without first seeking permission from the architect.

Many prominent architects are
also particularly proficient at self-publicity and so one has to
wonder exactly who is lobbying the European Parliament and Commission
to ensure that Freedom of Panorama is excluded from any future EU law. Although if in
doubt we can usually blame the French. Or possibly French architects.

As Ben has previously reported, the next milestone along the road to EU copyright reform comes on 9 July when the plenary session of the European Parliament debates the subject. Perhaps at that point the 'greens' (as shown on the map above) may manage to sway the argument back the other way.

Thursday, 25 June 2015

This year's Sir Hugh
Laddie Annual lecture at UCL's Institute of Brand and Innovation Law
(IBIL) was given by the distinguished American judge Alex Kozinski,
lately Chief Judge of the US Ninth Circuit. In an introduction
given by Daniel Alexander QC (standing in for Sir Robin Jacob who had
been delayed), we heard that the Ninth Circuit covers an enormous
area stretching from Alaska to Arizona and to Hawaii and Guam with a
population of 60 million people within its jurisdiction.

But as Judge Kozinski
himself pointed out in his opening remarks, perhaps more
significantly the Ninth Circuit includes those two power houses of
American creativity and innovation, Hollywood and Silicon Valley. Not
for nothing is it also known as the Hollywood Circuit. This means
that a lot of important intellectual property cases have been decided
by the Ninth Circuit, along with quite a few less worthy ones. The
title of the lecture was IP and Advocacy, but it might have been
subtitled "Keep it simple, stupid". In an amusing all
singing (literally) lecture Judge Kozinski encouraged IP advocates
to keep their pleadings and submissions simple, and preferably
illustrated by means of helpful analogies which the bench could
relate to. I suspect that Sir Richard Arnold who was sitting in the
front row might have permitted himself a wry smile at this
suggestion. Judge Kozinski then followed his own preaching with an
example of what he meant. He cited the case of Galoob v Nintendo,
in which Nintendo had alleged that Galoob's add-on software named Game
Genie which alowed players to vary the way in which Nintendo's games
could be played, infringed Nintendo's copyright. He quoted from the
introductory paragraphs of Galoob's submission to the Appeal Court,
which was couched in terms of a story about a young teenage girl who
perfectly legally read the last page of her book before deciding to start from the beginning, once she was sure it had a happy ending; she subsequently watched
a video, and fast-forwarded to the part where she had finished
watching previously, and after this she plugged in the Nintendo game
cassette along with the Game Genie software and was able to alter
certain characteristics of the game, and also jump to a level she had
not previously reached. None of these actions resulted in any
alteration of Nintendo's code or made copies of it, just as reading
the last page of the book or fast-forwarding the video had not
infringed the respective copyright in those works. Judge Kozinski
said that by means of these few simple sentences, Galoob's counsel had
illustrated the futility of Nintendo's case, even though the
submission then ran on for another 50 pages or so.

Further amusing
examples were quoted, in which we were treated to such musical
delights as Johnny Mathis singing When Sunny gets Blue (Fisher v Dees), and Aqua singing
I'm a Barbie Girl. The latter was in the context of the case Mattel Inc v MCA Records in
which Mattel who make the Barbie doll, sued MCA Records over the Aqua
song, instead of realising this was excellent free publicity for
their product. Or in the words of Judge Kozinski, they should have
just sent over a bottle of Dom Pérignon
to MCA. This was the famous case in which the Ninth Circuit court
proffered the following advice within their opinion "the parties
are advised to chill". Clearly Mattel's lawyers thought
otherwise and petitioned the US Supreme Court although SCOTUS
declined to hear the case. Judge Kozinski made the point that too
often in IP cases the author of the work is too personally involved
and affronted by the alleged infringement and so overlooks the bigger
picture. He went on to develop the point by saying that seldom is it
the case that the dire consequences which plaintiffs argue actually
come to pass. From the time of Gutenberg, vested interests have
opposed virtually all technological advances, but their fears have
proved groundless. He didn't mention the RIAA and the major record
labels but few in the audience can have been unaware of the
unstated criticism.

Yet more examples were
used to illustrate the point: Vestron v HBO on the futility of
injunctions in some cases; Sony v Universal City Studios (the Betamax case)
on the contention that disasters predicted by plaintiffs seldom turn
out as bad as is first claimed - in that case the home theatre market
proved to be a goldmine for the creative industry, not its nemesis.

And as I predicted
elsewhere, Judge Kozinski then came to the Garcia v Google case.
This has been extensively reported here on 1709 and on the IPKat blog
and so I won't summarise the case here. However Judge Kozinski saw
this as yet another instance where the dire things claimed in
submissions never actually happened. This sounded a little like the
judge rowing back from his own first appeal court decision to injunct
YouTube over the Innocence of Muslims trailer. This was touched on in
a question at the end, when the Judge was asked if there had ever been
a decision he later changed his mind over. The response was that a
court's opinion stands still and reflects the facts at the time, but
person who makes the decision moves on and and may develop his views
over time.

The lecture drew to a
close with a brief analysis of when the law is not necessarily the
answer. In particular Judge Kozinski highlighted the Streisand effect
and also the effectiveness of a well-organised public backlash against an
over-zealous litigant, who while he may have the law on his side, can
do great damage to his brand by appearing to bully the little guy. In
this context he mentioned the trade mark dispute between Vermonster beer and Monster energy drink, and the European case of Louis Vuitton v
Plesner (reported here by the IPKat blog).

As perhaps befits a
judge from the Hollywood circuit it was a most entertaining evening
and a candid look at one face of the American IP legal machine at
work.

Tuesday, 23 June 2015

SiriusXM has won a rare victory over its use of pre-1972 recorded music in the satellite radio broadcasters' ongoing battle with Flo & Eddie, founders of The Turtles. The musicians filed separate lawsuits in California, Florida and New York in 2013, aiming to use state laws to stop SiriusXM using their sound recordings such as "Happy Together" without paying royalties. California and New York judges have both favored the argument that state laws protect the public performance of pre-1972 sound recordings in the absence of federal legislation. The Florida judge was last to rule, but has gone the other way: U.S. District Judge Darrin Gayles decided to rule in favor of SiriusXM's summary judgment motion. The judge said he understands why his judicial colleagues in other states ruled differently noting that California and New York are vreative centres of culture, and laws have been enacted there to protect artistic rights, and there have been prior cases that have touched upon the present controversy. But Judge Gayle said that "Florida is different" saying "There is no specific Florida legislation covering sound recording property rights, nor is there a bevy of case law interpreting common law copyright related to the arts." Declining to fill the void in the state's legislatnion the Judge said "If this Court adopts Flo & Eddie’s position, it would be creating a new property right in Florida as opposed to interpreting the law" adding that it's the job of the Florida state legislature to address the issue, and that a decison to plug te gap would bring up a host of other issues such as resolving who sets and administers licensing rates, who owns sound recordings for dead artists and what exceptions there might be to a public performance right. Judge Gayles also declined to find SiriusXM liable under Florida common law copyright for reproductions of sound recordings in back-up and buffer copies. As it currently stands, the 2nd Circuit will be reviewing the New York judge's decision with the California case awaiting a result, too.More here http://the1709blog.blogspot.co.uk/2014/09/1972-and-all-that-but-does-turtles-win.html and here http://the1709blog.blogspot.co.uk/2013/08/turtles-probe-murky-soup-of-pre-1972-us.html and here Flo & Eddie, Inc., v Sirius XM Radio Inc., et al UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 13-23182-CIV-GAYLES/TURNOFFhttp://www.scribd.com/doc/269387788/Floeddie-Florida

Monday, 22 June 2015

Australian Green party senator Scott Ludlam has branded the government’s controversial website blocking bill a "lazy and dangerous" piece of legislation that wouldn’t been happening if the Labor government “hadn’t gone completely missing". The Australian Parliament which has begun debating the Copyright Amendment (Online infringement) Bill 2015 which, if it becomes law, will enable rights holders to apply to the Federal Court for an injunction that will force ISPs to block its customers from accessing a website. The scheme applies to websites based overseas that are involved in or facilitate copyright infringement. Senator Ludlam said the debate had begun at the behest of foreign rights holders and lobbyists who have “collectively donated millions of dollars to the Liberal and Labor parties" adding“The Greens will move a series of amendments to try and blunt the worst impacts of this bill, but passing them would require the Labor Party to reappear. If anyone has seen them, please let us know”.And Peter Sunde, the former official spokesperson for The Pirate Bayhas added his voice to those criticising Aiustralia's plans to implement a system for blocking access within its borders to piracy websites based outside Australia, Speaking to Laterline on ABC, Sunde said that the new laws would be unpopular with voters, and wouldn't deter illegal downloading: "For instance, in Denmark they tried to block Pirate Bay" he said "What happened is that people found very easy ways to circumvent the block, and the traffic from those countries to Pirate Bay spiked afterwards". He added: "People aren't stupid and there's really easy alternatives to circumvent most of these laws. So it becomes a kind of whack-a-mole game, and like a nuclear arms race as well, because you will have to block the next thing that will help people to circumvent things" and "So it becomes a kind of whack-a-mole game, and like a nuclear arms race as well, because you will have to block the next thing that will help people to circumvent things."More here and on ABC here and on the 1709 blog here

Sunday, 21 June 2015

"No, RIAA, It's Not the End of the World for Musicians" is the title of an article by US copyright scholar Michael A. Carrier (Rutgers University School of Law - Camden, right). The article is published in the University of Missouri-Kansas City Law Review, 2014, but you can access it via SSRN here. The abstract reads like this:

Technological advances threaten established business models. That is Innovation 101. In particular, that is Disruptive Innovation 101, by which revolutionary business models disrupt the status quo, introducing new frameworks that displace demand for the original.

Such an observation plays a large role in explaining why the record labels have called for more expansive copyright protection. Caught flat-footed by the technological revolution unleased by digital distribution and peer-to-peer (P2P) services like Napster, the labels have blamed much of their woe on copyright infringement.

This article, written for a symposium on music and copyright, rebuts these dire proclamations. It shows that the sky is not falling for musicians. And it shows how innovations in technology have made it easier for musicians to participate in every step of the process: creation (GarageBand), distribution (Twitter, YouTube), marketing (Topspin, Bandcamp), royalty collection (CD Baby Pro, TuneCore), crowdfunding (Kickstarter, Indiegogo), and touring (Songkick, Bandsintown). The article concludes by highlighting examples of musicians forging stronger connections with their fans.

Michael has also written a blogpost summarizing this article for Techdirt, here.

Something tells this blogger that not everyone agrees with Michael's conclusions -- but what take will they have on the data he cites?

Friday, 19 June 2015

In China the Sword Campaign - an annual nationwide special enforcement crackdown on online piracy and copyright infringement - will begin this month. The campaign is jointly operated by the National Copyright Administration of China (NCAC), Ministry of Industry and Information Technology (MIIT), Ministry of Public Security (MPS) and Cyberspace Administration of China (CAC). The campaign will focus on music, film and TV, online literature and mobile applications. More here (in Chinese).And also in China, the IPO/UKTI IP newsletter tells us that the State Administration of Press and Publications, Radio, Film, and Television (SAPPRFT) has published for public consultation a set of draft Measures for the Administration of the Distribution of Audiovisual Programs over the Internet and other Information Networks. Following earlier requirements for SAPPRFT supervision of overseas content, the draft Measures describe the application process and eligibility criteria for service providers to show audiovisual content on the Internet and mobile platforms. The deadline for comments on the draft Measures is June 30. More here (also in Chinese).The European Commission has given the all clear for European collecting societies PRS, STIM and GEMA - which represent publishers and songwriters in, respectively, the UK, Sweden and Germany - to form a central hub to license and process royalties from multi-territory digital services.

PRS For Music CEO Robert Ashcroft: "This is a very significant day for online music licensing as our new joint venture is uniquely positioned to deal with the rapidly transforming online music market. What this clearance means is that we are now able to work even more effectively on behalf of songwriters, composers and their music publishers, while at the same time helping to develop the Digital Single Market across Europe" whilst STIM CEO Karsten Dyhrberg Nielsen said: "Today's competition clearance announcement is testament to the incredible work that has gone into the design of this new offering, which will provide a seamless service for both music rights holders and pan-European digital service providers. It's the result of years of productive collaboration between STIM, GEMA and PRS For Music to deliver a solution that will help the digital market grow".

A federal appeals court has revived a copyright infringement lawsuit against Justin Bieber and Usher, marking the latest in a string of high-profile decisions attempting to clarify the nebulous difference between inspiration and copyright violation in the music industry. A three-judge panel of the 4th Circuit of the U.S. Court of Appeals unanimously ruled that there is sufficient reason to allow a jury to consider whether "Somebody to Love," a 2010 chart-topper from usher and Bieber, bears too much resemblance to an earlier song of the same name recorded by two Virginia musicians, Devin Copeland and Mareio Overton. "After listening to the Copeland song and the Bieber and Usher songs as wholes, we conclude that their choruses are similar enough and also significant enough that a reasonable jury could find the songs intrinsically similar," Judge Pamela Harris wrote for the court.In London the High Court has ruled against the UK Government in a Judicial Review brought by the British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music. These three bodies challenged the Government’s decision to introduce a private copying exception into UK copyright law, arguing that it was unlawful because it failed to provide fair compensation to rightholders. UK Music's press release goes on to say "BASCA, MU and UK Music had welcomed a change to UK law which enabled consumers to copy their legally-acquired music for personal and private use. However, ahead of the introduction of the private copying exception, they consistently alerted Government to the fact that in such circumstances significant harm is caused to rightholders and European law requires fair compensation to be paid. The High Court agreed with the music industry and found that Government’s decision not to provide fair compensation was based on wholly inadequate evidence – and that Government’s decision was therefore unlawful." Commenting on the outcome of the case, Jo Dipple, CEO UK Music emphasised the value of the music industry to the British economy and said: “The High Court agreed with us that Government acted unlawfully. It is vitally important that fairness for songwriters, composers and performers is written into the law. My members’ music defines this country. It is only right that Government gives us the standard of legislation our music deserves. We want to work with Government so this can be achieved.” You can access the judgment here. BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) and more from Eleonora on the IPKat here

Following a vote by the European Parliament’s Legal Affairs Committee, an amended version of its report on the implementation of the EU’s 2001 InfoSoc/Copyright Directive will now go forward for further likely amendment and vote a by the full European Parliament on 9 July 2015. The draft report amongst other things calls for:- An impact assessment in relation to any single European copyright title proposal - looking at issues arising from geo-blocking of access to certain content services within the EU. the draft report contains strong language in favour of protecting the rights of “cultural minorities” living in the EU to access content in their native languages, which they are now often prevented from doing because of geo-blocking practices.- Mandatory adoption of some copyright exceptions and limitations - whilst recognising that some difference may be justified on the grounds of specific cultural and economic interests - Assessment of proposed new exceptions to allow (for example):- Libraries to lend e-books; and text and data mining - An impact study of the Commission’s copyright modernisation initiative on the production, financing and distribution of films and TV content, and on cultural diversity.- The report rejected the idea of a “snippet tax” that targets aggregators like Google News, but equally does not recommend any expansion of concepts such as fair use.- The report does call for potentially expanding the liability of Internet service providers and online platforms when their users infringe copyrights. An approved amendment says that the legal status of these intermediaries should be clarified so that content creators and rightsholders are fairly paid for their work.

Julia Reda MEP

Whilst the report doesn't live up to more radical reforms that rapptorteur Julia Reda MEP had called for, the Pirate Party MEP said “After decades of introducing new restrictions to protect the material interests of rightholders, this is the strongest demand yet to restore balance in copyright rules and reduce the legal uncertainty that Europeans face when accessing copyrighted works today.” However reports said that Reda was not happy with the protection for the creators of public artworks that might be photographed or captured on video or film. The amendment states that any such images used commercially must get permission from the author of the work. The report was slammed for its lack of ambition by IT industry group Digital Europe, which said that it is a missed opportunity for reform and bows too much to the demands of copyright holders who don’t want significant reform. The group pointed to the need for immediate reform of rules governing private copying of content.The Electronic Frontier Foundation said "Fix Our Broken Copyright Law!" and lead in their article by pointing out that Hungarian artist Paul Mutant's "This Painting is Not Available In Your Country" is one of the artworks that adorns the wall of EFF's office in San Francisco - explaining that whilst the title may make little sense to Americans used to a country wide federal system, "almost every European Internet user recognizes it instantly—they encounter a similar message every time they attempt to watch one of the many YouTube videos that rightsholders haven't licensed for streaming in their country. Similar geographical restrictions impede Europeans' access to pay services, such as Netflix, when they travel abroad (assuming they are lucky enough to be able to subscribe to begin with—in over two-thirds of the world, Netflix is unavailable at any price, without the use of a location-fudging VPN)."The EFF's article goes on to opine that geographical blocks are just a tiny part of the problems in European copyright law, under which some countries "even rule it illegal to take holiday snapshots of public buildings". The EFF also comment what they call "regressive proposals" that have been promoted by amendments, including several which "would threaten the right to link (the widget featured above highlights this threat, and it's free for you to use on your own website too)". The EFF say that negotiation over those amendments has resulted in compromises, giving as an example the paragraph that called for recognition of "the freedom of rightsholders to voluntarily relinquish their rights and dedicate their works to the public domain" would, in the compromise version, merely ask the European Commission "to examine whether rightsholders may be given the right" to do so.The EFF also comment (And express displeasure) at: A recommendation that existing copyright limitations and exceptions be mandatory across all member states is replaced with one that accepts that different rules "may be justified on a case-by-case basis, to allow room for manoeuvre of Member States to legislate according to their specific cultural and economic interests".A former strong call for a "fair use" style copyright exception is narrowed to a principle of interpretation, allowing "flexibility in the interpretation of exceptions and limitations" in "areas similar to those in which where an exception or limitation already applies". Needless to say, whatever this principle amounts to, it is not fair use as we know it.A paragraph that formerly recommended "that the exception for quotation should expressly include audio-visual quotations in its scope" has been mangled beyond recognition, and no longer does so.A provision on freedom to link, that would have explicitly set out that "reference to works by means of a hyperlink is not subject to exclusive rights, as it does not consist in a communication to a new public", has simply been deleted in the compromise draft.More here

Monday, 15 June 2015

Many people like to
think of the law on copyright as being technology neutral. And to a
degree it can be, where the technological evolution follows a
vaguely linear path, say from text on a printed page to text from a
word processor, or art done in oil paint to artwork created using a
graphics software package. But from time to time the family of works
which copyright seeks to protect is joined by a cuckoo, which may not
immediately fit neatly into the existing legal templates or caselaw. An early
example was photography. Arguably, even today it has
still to reach full parity with other artistic works, as shown for
instance in the recent French case concerning a photograph of Jimi
Hendrix, reported by Marie-Andree here,
but also in such cases as Painer (C - 145/10) and Bridgeman Art Library which demonstrate that the subject of originality in photographs is
far from settled law. If further evidence that photography remains
something of an outlier was needed, we can see it in last year's
debate over the macaque monkey photographs. Part of the problem is
technological - the fact that a camera generally speaking makes a
faithful image of whatever is in front of the lens and so by
definition a photograph starts out life as a copy of something - and
partly it is to do with the law's approach to defining originality.

For well over the first hundred years of
that particular technology, copyright law treated it is as lex
specialis (for example, see section 21 of 1911 Copyright Act
, Article 7 (4) of the Berne Convention and § 72 of the German Urheberrechtsgesetz).

Something similar
occurred with motion pictures and sound recordings. The law was slow
to give them equivalence to the traditional genres of copyright
work, so that even now, determination of who is the 'author' and what
term of protection to give, are both different to what applies in the
case of literary, artistic, dramatic and musical works. And even more
recently we have seen databases shoe-horned into the general
framework, under the label of being sui generis, with different
criteria for determining 'originality' and what constitutes copying.
And then, right up to date, we have the issue of digital exhaustion,
and the apparent splitting of the jurisprudence between software (lex
specialis) and other types of digital works.

But despite these
examples, not all new technologies are as disruptive to the copyright
jurisprudence as they might at first appear to be. I believe that 3D
printing currently falls into this category, although others
argue differently.

And that lengthy
preamble brings me to the real subject of this polemic:
linking. The recent launch of the Save the Link campaign (more
details here and here)
was aimed at raising awareness of the real possibility that the
European Parliament could shortly compound the error I think the
Court of Justice of the European Union made in Svensson (C -466/12),
where it found [23] that a hyperlink was a communication to the
public. Many people criticised
the Svensson judgment, but in my opinion, for all the wrong reasons.
Had the court found that hyperlinking per se was not a communication
to the public, then the larger question about the kind of public (either 'new'
or the one envisaged by the copyright owner from the outset) would
not have needed to be addressed. Linking is just the modern day equivalent of the footnote or bibliography to be found in virtually any academic or learned paper, journal or book. It should be one of those cases where the existing law is more than capable of regulating a new technology.

Although various internet campaigns, such as the one against SOPA or the
continuing debate over net neutrality, have been successful,
I am more sceptical about the chances of the Save the Link campaign.
Not because it lacks merit. It obviously doesn't, but because its
target - the European Parliament - is less easy to influence than a
bunch of politicians on Capitol Hill. By definition, elected
politicians need to be sensitive to the will of the people who elect
them, but the European
Parliament is a very different animal to either Congress or the
parliaments of most member states of the EU. It is more remote from
its electorate (few constituents know the name of their MEP or lobby
them in any meaningful way, and even fewer would be able to outline the manifesto policies she/he stood on), and the parliament itself is generally
reactive, having no power to initiate legislation, only to reject or
amend legislative proposals emanating from the Commission. Rarely
does the Parliament reflect the true feelings of the electorate which
put them there. One notable exception to this state of affairs was
their rejection of the ACTA treaty in 2012.
I suppose it is upon this singular success that the Save the Link
campaign is building its hopes. However that is not to say that European Parliament is immune to lobbying, far from it, it continues to be successfully targeted by many large corporations and other vested interests, and it is these influences that Save the Link is struggling to counter.

But despite the energy and
determination of the Open Media consortium which is behind the Save the Link campaign, whose work I applaud, I have little faith in it influencing
the way the EU will proceed, either with regard to linking or any
other specific policy detail in the proposed copyright reform
package. Oh, and the critical European Parliament vote takes place tomorrow, Tuesday 16 June.

Update. A press release on yesterday's vote by the Legal Affairs Committee urging the Commission to press ahead with the Copyright Reform package can be found here. There was no mention of the specific topic of linking.

Sunday, 14 June 2015

This question has proved
fairly controversial to address in a number of different jurisdictions. Via
1709 Blog friend Mirko Brüß (Rasch Rechtsanwälte) comes however the news that some guidance in this respect has been
recently provided by the

Bundesgerichtshof (BGH, the German Federal Court of
Justice).

Here's what Mirko writes:

"To
begin with, it should be noted that I am an attorney in the law firm that
represented the plaintiffs in the three cases at hand.

Earlier this week the BGH dismissed the appeals
of three DSL subscribers who were previously sued by major music labels EMI,
Sony, Warner and Universal.

In short, the BGH confirmed that damages of EUR 200
per song are appropriate when music is communicated to the public via
P2P-Filesharing. DSL subscribers were found liable as perpetrators for damages
and attorneys’ fees when they did not present alternative facts that could
explain why their IP was used for unlawful filesharing. They also had the burden of
proof for such facts. When the filesharing was done by the subscriber’s
children, they needed to prove they did not neglect their parental supervisory
duties. With regards to filesharing, this means the parents need to explain the
dangers of filesharing to their children and prohibit the use of such systems.
Failure to do so results in full liability for damages and attorney’s fees.

More in detail

All three cases date back to 2007, when the IP
addresses of the defendants were found to be the sources of hundreds (in two
cases: thousands) of MP3s made available for download (communication to the
public, § 19a UrhG – German copyright code) via P2P-filesharing, using the now
obsolete “Gnutella”-Network, which is technically similar to BitTorrent,
because users who download files are also uploading them at the same time.

Since it is technically impossible to tell from the
outside who is operating a PC that is using a certain IP-address, we approached
the DSL subscribers with cease-and-desist letters and an offer for out-of-court
settlement. When no agreement was found, the cases went to the district court
of Cologne. The labels asked for damages of 3000 EUR (for 15 tracks, or 200 EUR
per track) and for their out-of-court lawyer’s fees.

The BGH had previously decided on filesharing cases
in 2010 (I ZR 121/08 “Sommer unseres Lebens”), 2012 (I ZR 74/12 “Morpheus”) and
2014 (I ZR 169/12 “BearShare”). In these cases, the BGH had ruled that when an
IP is found to be the source of filesharing, this is prima facie evidence that
the DSL subscriber was using the P2P client. The lower courts have ever since
been very diverse when it came to what could be asked of the subscriber to
counter the prima facie evidence. Positions ranged from “it is sufficient to
claim that other persons had access (in general) to the subscribers internet”
to “the subscriber needs to name the person who did it”.

Also, the BGH had never decided on the amount of
damages that can be asked and lower courts’ decisions varied from 15 EUR per
song to 300 EUR per song. Since there are thousands of cases similar to the
ones at hand still pending at the lower courts, the three decisions were eagerly
awaited by lawyers and the public alike.

Before the court, the defendants in our three cases
used different arguments against their liability.

In the first case (I ZR 75/14), the defendant
questioned the reliability of the investigations and the allocation of the
IP-address to his DSL account. He claimed that neither he, nor his family had
access to the internet via his account, stating the whole family was on
vacation and they had cut the power for the PC and the router before leaving.
The regional court of Cologne sided with the defendant and thus dismissed the
case.

We appealed and the higher regional court of
Cologne overturned the decision, sentencing the defendant to pay both damages
and lawyers’ fees. This was after hearing the family as witnesses for the
purported holiday. In short, the court did not believe the family was on
vacation and all, disregarding these claims as a defensive lie.

In the second case (I ZR 19/14), the defendant
also questioned the reliability of the investigations and the allocation of the
IP-address to his DSL account. He argued that there was only one PC in the
household and that his 17 year-old son had no access to this at all, while his
wife did have access, but had very little knowledge of PCs and was not able to
install any software due to lack of administrator’s rights. Both the regional
court and the higher regional court of Cologne ordered the defendant pay
damages and attorneys’ fees. The courts reasoned that since there was only one
PC and the defendant had ruled out his wife and son as the perpetrators, it
must have been him who used the filesharing network.

In the third case (I ZR 7/14), there had been
a criminal investigation in which the defendant’s 14 year old daughter had
admitted she was the one to use the filesharing network for downloading music.
Both the regional court and the higher regional court of Cologne had sentenced
the defendant to pay damages and attorney’s fees. She further appealed to the
BGH, claiming that her daughter’s confession could not be used in civil
proceedings, because the police had not advised her daughter that the criminal
confession could be used in a civil case against her mother. Secondly, she
claimed she had instructed her daughter on the illegality of uploading
copyright-protected musical works and thus there was no neglect of parental supervisory
duties.

EUR200 per song, to be more precise

The decisions

On June 11th, the BGH dismissed the
defendant’s appeals in all three cases and upheld the lower court’s rulings.
All three defendants were sentenced to pay 3000 EUR of damages (200 EUR per
song) and the out-of-court attorney’s fees of the major labels. With regards to
the cases #1 and #2, the BGH followed the higher regional court of Cologne that
the defendant did not present (and prove) facts that could explain why someone
else other than the DSL subscriber could be the infringer. In both cases, the
defendants themselves had rather ruled out that someone from their family had
access to the internet at the time of the offence.

In the third case, the BGH found that the higher
regional court was allowed to use the defendant’s daughter’s confession. The
police did not have to explain to her the possible consequences of her
confession for civil proceedings. Also, the daughter was heard as a witness by
the regional court of Cologne, where she confirmed her confession. The BGH then
decided the defendant had neglected her parental supervisory duties, because
she failed to prove she had properly instructed her daughter about the dangers
of filesharing.

Having found that all three defendants liable for
the infringements, the BGH confirmed the rulings of the higher regional court
of Cologne, granting the plaintiffs damages of EUR 200 for each of the 15 songs
that were communicated to the public. The damages were estimated by the court
using the licence analogy method. The higher regional court began its
calculation at 50 cent per song, and further estimated that it was realistic to
anticipate 400 downloads to be made from the plaintiffs PCs, thus totaling EUR
200 per song. This is in line with earlier judgments by the higher regional courts
of Frankfurt and Hamburg.

We believe these judgments will make it easier for
copyright owners to enforce their rights. Some of the lower courts made it easy
for defendants to get away with stories that would shift the burden of proof to
the plaintiffs when the latter actually had no means to prove what happened
within the walls of the defendants’ homes. According to these recent rulings,
when defendants claim they “didn’t do it”, they will have to present a credible
alternative explanation for why their internet connection was the source of
illegal uploading. A vacation that never actually happened is no such
alternative. The BGH also put an end to a lengthy disagreement between various
lower courts on how to calculate damages in filesharing cases."

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